Arts Law made a submission to the Senate Legal and Constitutional Affairs Committee on the Exposure Draft of the Human Rights and Anti-Discrimination Bill 2012. The Arts Law submission related to the ‘performance … of an artistic work’ defence that is provided by s. 51(4) of the Racial Discrimination Act 1975 (RDA). The Arts Law submission was focused on the interests of artists, such as stand-up comedians, whose work may be challenging and cause offence to some members of the community.
The 2012 Bill is intended to consolidate the existing Commonwealth anti-discrimination legislation. The major reforms proposed in the Bill include:
- a single, simplified test for discrimination;
- the introduction of additional protected attributes, including protections against sexual orientation and gender identity discrimination and extension of protections against relationship discrimination to same-sex couples in any area of public life; and
- a streamlined approach to exceptions.
Arts Law supports the objectives of the 2012 Bill to ensure consistency in anti-discrimination standards.
James Spigelman, the Chairman of the ABC and former Chief Justice of the Supreme Court of New South Wales, in the Human Rights Day Oration on 10 December 2012, commented “that declaring conduct, relevantly speech, to be unlawful, because it causes offence, goes too far. The freedom to offend is an integral component of freedom of speech. There is no right not to be offended.” James Spigelman was critical of the proposal in the 2012 Bill to include the term “offends” in the definition of discrimination as determining the line between permissible and unlawful speech, notwithstanding that conduct that may offend can fall within a statutory exception to liability.
The inclusion of term “offends” in the definition of discrimination provides what can be considered a low legal test for liability, in that conduct which merely offends another could be determined to be discriminatory. However the Arts Law submission identifies that courts that have considered the application of the statutory exception of a ‘performance … of an artistic work’ (s. 51(4) RDA) have determined that test to be applied is an objective one and that in assessing the "reasonableness" of the conduct, it is also necessary to look at all the circumstances surrounding the conduct. Arts Law is of the opinion that artists, such stand-up comedians, whose work cause offence to some members of the community are protected by the ‘performance … of an artistic work’ defence in s. 51(4) RDA.
Arts Law recommended that the Explanatory Notes to the 2012 Bill should confirm that in relation to s. 51(4) RDA “the exemption that deals with an act that is done reasonably and in good faith in relation to artistic work. This exemption would cover both serious drama and comedy acts. Whilst some of these performances may cause offence to some people, they are presented as entertainment and are not within the scope of the prohibitions.”
The Arts Law submission is number 369 at http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=legcon_ctte/anti_discrimination_2012/submissions.htm.